[1] House Hearing Fails To Link Klamath Fish Kill To VP Cheney

Little new information surfaced at a House committee hearing on alleged Bush administration arm-twisting over the science developed by federal agencies charged with enforcing the Endangered Species Act.

The House Natural Resources Committee met July 31 to look at the question of the current administration's political influence on federal science and decision-making.

The committee invited both Vice President Dick Cheney and Interior Secretary Dirk Kempthorne, but neither appeared.

However, it did get an earful from Mary Kendall, deputy inspector general for the Department of Interior, who reviewed the investigation into the conduct of an Interior deputy assistant administrator, Julie MacDonald, a political appointee.

The inspector general's office found that MacDonald had provided nonpublic information to friends outside the government, including some who were involved in litigation against the feds.

MacDonald has since resigned and the Interior Department is reviewing nine listing decisions that may have been compromised.

In oral testimony, Kendall said her office did not investigate the conduct of Cheney in ESA matters, particularly over the situation in the Klamath Basin, where a June 27 Washington Post story said the vice president's actions aided farmers after old Cheney friend and former Oregon congressman Robert Smith had asked for help.

The Post says Cheney intervened on behalf of farmers in the dispute over water releases after the Bureau of Reclamation shut irrigators down in 2001 to protect two listed species of suckerfish in the basin and ESA-listed coho much farther downriver.

Cheney reportedly received weekly briefings on the Klamath situation from Sue Ellen Wooldridge, the 19th-ranking official at the Interior Department, and later suggested the department ask the National Academy of Science's National Research Council (NRC) to study the water issues.

A panel convened by the Academy in 2002 produced an interim report released later that year, and a final one in 2004. Both found that the water management regime that shorted farmers was not justified scientifically, for either the suckerfish or the coho.

At that point, the Bureau of Reclamation decided to implement a flow regime that was more beneficial to farmers.

But in September 2002, high water temperatures in the Klamath led to the deaths of 30,000 to 60,000 chinook from parasites (depending on which agency did the estimating). Several hundred coho also died, but most were hatchery fish, with only a few dozen estimated to be from the wild ESA-listed population.

NRC panel chair William Lewis, from the University of Colorado, told the House committee that his group found some agency decisions regarding the Klamath Project that cut irrigation water in 2001 "had been contradicted by data collected [lake levels, flows] at the project."

The panel concluded that stricter operation of the project was unlikely to benefit the ESA-listed fish. But the panel also found that a later agency proposal to widen water management parameters from the preceding decade also could not be scientifically justified.

Lewis said his group did not think the flows from the Klamath Project were the main factor in the fish kill, which provided only 10 percent of the flows to the Lower Klamath that year. He said the region was in the grip of a drought at the time, flows were very low, and once the fish kill was reported, the question came up whether the Klamath project operations were responsible for killing the 33,000 chinook out of a total run of 170,000 fish.

The NRC panel found that going back to 1988, there were five big drought years in the Klamath with no salmon mortality, and in some of those years, flows were lower than in 2002. "We began to think, this is not simply a matter of flow," said Lewis.

He said the committee decided that the Klamath Project was not likely to blame, because it had been operated the same way since 1990, and was located so far from the mouth of the river where the fish had died.

Lewis also noted that the project water is warm because it comes from storage reservoirs. "The salmon that are migrating need cool water, particularly the early migrating fish, which includes the chinook," he said.

However, when the salmon were piling into the lower river and staged for migrating, they waited for a signal like a cool flow caused by a little rain. "They waited too long because they didn't get the signal, and disease overtook them and killed a portion of them," Lewis told the politicians.

But ex-NMFS biologist Michael Kelly disagreed. As author of a draft BiOp for the Klamath Project on the listed coho, Kelly said he left the agency in 2004 after his analysis was ignored, and a BiOp was completed that he considered "illegal."

Later, the 9th U.S. Circuit Court of Appeals did rule it illegal, and Klamath project flows have been bumped up to account for about 40 percent of the total flow in the lower part of the river, according to Kelly. He says, if more flows had been available in 2002, "there would have been more water, which would have made it, possibly, easier for the fish to move upstream and avoid the crowded conditions. That's also [flows] the only thing you have control over."

Kelly said, in 2001 while he was working on the draft BiOp, his supervisor had informed him that Cheney had been briefed on the consultation. That was the only time the vice president was mentioned to him during the consultation.

In written testimony, however, after his work had been rejected, he suspected it was because it did not agree with the interim NRC report. A different BiOp was then put together by higher ups, like Jim Lecky, NMFS assistant administrator for the Southwest region. In his written testimony, Kelly said it was obvious to him that "someone up the chain of command was applying a tremendous amount of pressure on Mr. Lecky. There's simply no other explanation for anyone in NMFS developing or accepting such a completely bogus and illegal BiOp."

Kelly refused to work on it after that, and filed a whistleblower disclosure after the 2002 fish kill.

At the hearing, Congressman Greg Walden (R-Ore.) asked NRC panel chair Lewis if it was true that "the Bush Administration played the NRC like a fiddle," as Kelly had described in his written testimony.

"No," said Lewis. He said he only knew what was happening from the viewpoint of his committee. He said it was obvious the agencies involved could use an outside evaluation, "and the National Academy was the obvious source of this information."

Lewis said the formation of the committee didn't have any signals of politically motivated interference. "The committee itself, once formed, is immune from political meddling because of the way the academy has learned to handle its committees over the last 150 years," he said.

In earlier testimony that day, NOAA assistant administrator William Hogarth, said influence of resource managers "comes from lots of different levels. As far as political influence from the administration, I've had zero since I've been here. So, I haven't seen any."

He said he has had talks with members of the Hill, the fishing industry, and with most of those who are regulated by his agency, but has seen no pressure from the administration. -Bill Rudolph

[2] Hatchery Reform Group Says Harvest Changes Needed As Well

Preliminary recommendations for changes to hatchery operations in the Lower Columbia River were unveiled at this week's meeting of the Northwest Power and Conservation Council. It's the first product of the Hatchery Scientific Review Group, charged with the task of examining hatchery programs throughout the Columbia Basin.

Depending on the stock in question, the HSRG says hatcheries must be managed either to augment wild fish numbers (integrated) or keep hatchery fish away from wild stocks as much as possible (segregated).

The Lower Columbia region is one place where many hatchery fish are found on spawning grounds--40 percent to 70 percent, in some cases. By reducing hatchery spawners, the HSRG says productivity of wild chinook can improve. The wild chinook in the lower Columbia are protected under the ESA, as well as chum and steelhead.

HSRG member Steve Smith, an Oregon-based fisheries consultant, told Council members Aug. 15 that changes to hatchery operations could boost productivity of the nine wild chinook populations in the lower Columbia and increase harvest opportunities if some harvest techniques are reformed. "We could not do it with hatchery reforms alone," he said.

By increasing selective harvest in terminal areas, spatially and temporally segregating hatchery fish for harvest, improving homing, and increasing selective harvest in Oregon and Washington ocean fisheries, Smith said overall harvest numbers could actually increase while allowing more natural fish to spawn.

Such changes would require all hatchery fish to be marked, Smith said. "There's some potential for new fisheries, more toward the terminal areas," he added. "Anything you can do, in any location, to remove those excess hatchery fish--put them into the economy and get them out of the bad biology."

But he said this would not work without improving stream habitat to support more wild spawners. "The other thing we also found is that we can double the benefits of habitat enhancement with the hatchery and harvest reforms. You make the habitat improvements, and the fish that you are allowing to spawn in that improved habitat are going to be much more productive because you're doing better hatchery and harvest actions."

Using the All-H tool developed by consultant Lars Mobrand, the HSRG analyzed several scenarios to see how different harvest and hatchery changes could play out. The HSRG solution calls for reducing ocean harvest rates on lower Columbia stocks from 42 percent (recently cut already from 46 percent) to 36 percent and focusing on catching hatchery stocks in mainstem fisheries, which could boost mainstem harvest rates to 20 percent on hatchery stocks from the current 12 percent. But this scenario would reduce harvest rates on natural stocks from about 12 percent down to 4 percent.

The review group has looked at every facility in the lower river and includes recommendations for management changes.

If the group's recommendations are followed, big changes could be in store for hatcheries like the WDFW facility on the Elochoman River, near Cathlamet, on the Washington side of the Columbia.

According to the report, the Elochoman River once contained the most significant historical fall chinook population in the region, but the recovery goal of 1,400 naturally spawning fish can only be achieved by drastic changes to current management which now releases about 2 million clipped fingerlings every year.

Hatchery broodstock is captured at a weir, where a small but unknown number of natural-origin fish are taken as well. However, the weir has not kept hatchery fish from reaching spawning grounds. In fact, hatchery spawners account for about 65 percent of the total spawning population, which also includes out-of-basin strays, principally from the Rogue River stock raised across the Columbia near Astoria for the Youngs Bay select area fishing program.

Since the natural population is not even replacing itself, the group said the "integrated" program now in place cannot be supported under the current harvest regime. The HSRG said significant decreases in fish releases would improve natural fish numbers, but it would also reduce harvest benefits. And still, it wouldn't likely meet its 1,400-natural fish goal (from the Lower Columbia recovery plan), even with extensive habitat improvements, unless more selective harvest regimes were implemented in the nearby ocean and mainstem fisheries.

Under current conditions, the HSRG estimated that a more selective harvest regime would allow about 600 or more natural spawners to return to the Elochoman. By shutting down the hatchery altogether about 300 spawners would be expected.

So the group examined two alternatives for future operations, in a range that either supported a small, segregated program, or an integrated program if more natural spawners were used for broodstock.

The segregated program would only release about one-tenth of the current number of fingerlings, but could produce from 350 to 580 spawners and another 600 or so for harvest.

An integrated program would release about half a million fingerlings if more natural fish could be used for broodstock (around 20 percent). The HSRG estimated natural-origin escapement could go from 370 fish to 590 fish annually, with the average harvest contribution bumped up slightly, from 1,200 to 1,300 fish a year.

After analyzing the results of those proposed operations, the HSRG recommended that the Elochoman Hatchery be operated on a much smaller scale than it is now, with an integrated program that would release only 190,000 uniquely tagged, but not adipose clipped fingerlings (to identify them on spawning grounds) "to sustain the population until fitness and natural potential has improved to sustain the population." They also called for a more effective weir and an updated hatchery facility.

But to achieve recovery goals, they said harvest impacts on natural fish need to be reduced, habitat must be improved, and hatchery operations changed. Since the population is so important to the lower Columbia ESU, they recommended "every possible step be taken" to achieve the abundance goal.

However, they recommended that ODFW's Big Creek Hatchery, where more than 5 million tule smolts are released every year, should maintain its current production and be operated as a segregated facility. Since Big Creek has the potential for being home to a few hundred natural spawners at most, they said it was best to keep the facility geared for producing harvestable fish. Though their report said the hatchery contributed a lot of strays to other areas of the lower Columbia, by improving homing fidelity and increasing terminal harvest, these adverse effects could be reduced. About 8,000 Big Creek adult chinook are harvested every year. -B. R.

[3] House Committee Mulls Sea Lion-Kill Bill

A House subcommittee heard testimony Aug. 2 on a bill that would allow the "lethal removal" of salmon-munching sea lions near Bonneville Dam.

With both the salmon and sea lions protected under different federal statutes--the 1972 Marine Mammal Protection Act and the Endangered Species Act--the proposed bill is a sign that Northwest politicians are fed up with the slow pace of solving the predation problem.

H.R. 1769 is sponsored by Washington Congressmen Brain Baird (D), Norm Dicks (D) and Doc Hastings (R), and Greg Walden (R) of Oregon, as an attempt to leapfrog the lengthy, cumbersome process now in place that could lead NOAA Fisheries to the same conclusion for handling some of the pesky mammals.

The politicians pointed to a run of steelhead in Lake Washington that was extirpated by California sea lions at the Ballard Locks in Seattle during the 1990s. The decision to lethally remove the sea lions ground on for years before the feds finally OK'd their lethal removal. But the drastic action was never implemented.

Last spring, despite an intense harassment program, the Corps of Engineers estimated that sea lions ate their way through about four percent of the upriver spring run, just in the vicinity of the Bonneville Dam. One particular sea lion nearly doubled his weight to over a thousand pounds while he was there.

The final tally was likely much higher than the Corps' estimate of around 3,500 or so salmon, a number based on observer sightings.

The proposal would allow Washington, Oregon and lower Columbia tribes to lethally take up to one percent of the "potential biological removal level" of the sea lion population, defined in the MMPA as 8,333 individuals, so a maximum of 83 sea lions could be exterminated.

"It should be noted," Rep. Baird said in his testimony, "that I share the view of many that far less than 83 sea lions will ever need to be taken to solve the problem on the Columbia River."

But the feds say progress is already being made. In fact, on the day of the hearing before the Natural Resources Committee's subcommittee on fisheries, wildlife and oceans, the federal agency announced the creation of an 18-member task force to look at the states' official request to kill some of the sea lions at the dam.

However, in his written testimony, regional NOAA Fisheries administrator Bob Lohn said the bill would be perceived as reducing protections for marine mammals. He suggested that changes to the current process would be better than the "stop-gap measure" of H.B. 1769.

Lohn also pointed out that the task force will meet in early September and it is required to have its recommendations into NMFS within 60 days. Lohn said his agency intends to approve or deny the states' application by March 2008.

Representatives of the fishery agencies in Washington and Oregon testified in support of the bill. ODFW's Robin Brown said the options available under the MMPA take too long for timely action.

WDFW's Guy Norman pointed out that after the experience with sea lions at the Ballard Locks, state and federal agencies developed a set of recommendations in 1999 to help Congress change the act to allow the agencies to manage the conflicts better, but the politicians did nothing.

The subcommittee also heard from Sharon Young, of the Humane Society, which is opposed to the legislation because it would "short-circuit" NEPA review and open up "other possibilities for carve-outs for expanded lethal control of marine mammals."

Young said the protracted process was NMFS' own fault, since the agency failed to meet its statutory deadline for convening the task force. She said that NMFS regional office staff told her the delay was mainly due to the desire of biologists to have a "fairly uninterrupted summer field research season."

Young said BPA's own statements about increased juvenile survival of the spring run and prospects of good returns next year imply that the fate of the fish "is largely independent of the predation" and that some listed chinook runs are harvested at over a 50-percent rate, far higher than the four-percent predation rate of the sea lions.

Baird said he disagreed with the Humane Society's claims that the bill wouldn't accomplish anything meaningful.

"California sea lions have turned the Columbia River into a salmon buffet," Baird said.

H.B. 1769 would also allow lower Columbia tribes to take lethal steps to remove sea lions from around the dam. Yakama tribal council member Fidelia Andy, who is also chair of the Columbia River Inter-Tribal Fish Commission, testified that predation could be more like 17 percent in the vicinity of the dam, if biologists are right that the sea lions eat two or so fish a day. That would mean the 100 or so sea lions near the dam for almost three months would consume more than 17,000 chinook, while the tribes are only allowed 6.7 percent of the run.

She said the tribes don't take lightly the NEPA exemption that the legislation would provide, but it would only last five years and focus on the most aggressive marine mammals. She said it was time to take another look at the Marine Mammal Protection Act because some populations have achieved their optimum sustainable levels.

Marine mammal numbers on the West Coast have tripled since falling under the protection of the Marine Mammal Protection Act. The California sea lion population is now estimated at about 250,000. Steller sea lions make up another 31,000, and the harbor seal population in Oregon and Washington adds up to about 25,000 more pinnipeds. -B. R.

[4] Property Rights Group To Appeal Two ESA/Hatchery Fish Rulings

The Pacific Legal Foundation has announced that it will appeal a recent ruling [Trout Unlimited v. Lohn] in U.S. District Court in Seattle that tossed out the current NMFS policy allowing some hatchery fish to be counted when making ESA listing decisions. Then, just two days ago, another ruling on hatcheries was announced in Oregon District Court that the PLF said it will also take to the Ninth Circuit Court.

Federal Judge James Coughenour admitted his decision conflicts with an earlier decision [Alsea Valley Alliance v. NMFS] by the U.S. District Court in Oregon that led to a change in agency policy that counted some hatchery fish if they were close enough to the wild component of the stock in question.

PLF attorney Sonya Jones said her group will go to the 9th U.S. Circuit Court of Appeals, arguing that the Seattle decision discounts the value of hatchery fish and forces regulators to ignore them when determining if stocks should be listed for ESA protection.

Jones told NW Fishletter that PLF is prepared to go all the way to the Supreme Court if the Niners turn down their appeal.

In the litigation, the PLF is representing the Building Industry Association of Washington, Washington Farm Bureau, Coalition for Idaho Water, and Idaho Water Users Association.

On Aug. 14, Oregon District Court Judge Michael Hogan delivered another blow to PLF challenges to federal hatchery policy when he ruled that it was perfectly legal for the government to use different standards for deciding whether hatchery and wild salmon should be listed for ESA protection. Hogan dismissed a PLF lawsuit [Alsea Valley Alliance v. Lautenbacher] that challenged all 16 ESA listings of West Coast salmon because federal officials have been leaving hatchery salmon out of the equation for determining whether salmon need special regulatory protection.

"Federal law says that all the salmon should be counted, and all the salmon should count," said Pacific Legal Foundation attorney Sonya Jones. "Regulators do not have license to pick and choose which salmon they'll pay attention to and which ones they'll ignore. For this reason, the case is not over. We're appealing, so that the federal officials will be required to do their job under the ESA."

Environmental attorneys said Hogan's latest ruling is consistent with the earlier ruling from Coughenour's courtroom. "Salmon and people need clean water, swimmable streams, and healthy habitat. We all win when we protect and recover wild salmon and their habitat," said Earthjustice attorney Jan Hasselman. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams," said Hasselman.

The groups intervening on the government's side were Trout Unlimited, Pacific Coast Federation of Fishermens' Associations, Institute for Fisheries Resources, American Rivers, Oregon Wild, Klamath Forest Alliance, Northcoast Environmental Center, National Center for Conservation Science and Policy, Pacific Rivers Council and Sierra Club. -B. R.

[5] No BiOp Appeal For Feds In Ninth Circuit

The Department of Justice announced July 30 that it would not petition for a rehearing of a 9th U.S. Circuit Court of Appeals panel's ruling that backed up a 2005 decision [NWF v. NMFS] in U.S. District Court that threw out the 2004 BiOp.

The state of Idaho has already petitioned for a rehearing in the Ninth, preferably en banc. However, the Idaho filing automatically sets the appeals clock back, said NOAA Fisheries spokesman Brian Gorman, who said the feds now have 90 days to decide whether to appeal NFW v. NMFS to the U.S. Supreme Court.

A recent Supreme Court decision [National Association of Homebuilders v. Defenders of Wildlife] found that the ESA does not trump other federal statutes, which some say runs counter to the original BiOp decision by Judge James Redden in the District Court.

But other legal analysts say the feds might find it difficult to apply the Supreme Court ruling to the BiOp case. -B. R.

[6] West Coast Sockeye Score: Bristol Bay 30 Million, Redfish Lake 3

Sockeye runs this year have been all over the map, but the further north it was, the better off they were. Alaska's Bristol Bay saw a bang-up year, where one area, at Nushagak, saw the second largest harvest since 1883--just shy of 8 million fish. Nearly 30 million were caught in all the Bay this year.

Downstate, Prince William Sound's Copper River fishery nabbed nearly 2 million sockeye all by itself.

However, those runs on the southern edges of the sockeye's Pacific Coast turf are faring far worse, especially Canada's famed Fraser River run. In their latest press release, Canadian sockeye prognosticators painted a gloomy picture of this year's runs in the Fraser. Citing poor ocean conditions in 2005 as the likely culprit, they say this year's return is only showing about one-quarter of the strength they had originally estimated. At this point, it is unlikely that any commercial fisheries will take place in waters managed by the Pacific Salmon Commission's Fraser River Panel.

On Aug. 13, they downgraded the river's Early Summer-run to 120,000 fish, down from 150,000, which was down from their original estimate of nearly 700,000 socks.

Their summer run estimation has shrunk to 750,000 fish from 1.26 million and originally 3.4 million. The late-run sockeye prediction has been pegged at 504,000 with 227,000 more headed for the Birkenhead River, down from original estimates of 2.4 million late run.

In 2006, about 8.7 million sockeye returned to the Fraser, about half the preseason forecast that year.

The managers said ocean conditions off Vancouver Island were so poor in 2005 that federal researchers found juvenile coho growth the lowest on record. "Low growth rates in juvenile salmon are often associated with higher mortality rates due to predation by other fish," the noted in their Aug. 10 update.

Migrating sockeye found Fraser River temperatures only .5 degrees C higher than average by Aug. 9, with the expectation that it would decrease more than a full degree C by this week. Flows were about 9 percent above normal on Aug. 9, but had decreased from 4,200 cm/s to 3,800 cm/s by this week.

One bright note on the Fraser--nearly 20 million pinks are expected.

Further south on the Columbia, the sockeye run was small, but showed up pretty much as expected. State and tribal fish managers predicted a 27,000-fish run to the mouth of the river (6,600 Wenatchee, 21,000 Okanogan) and more than 24,000 were counted at Bonneville Dam. At Rock Island Dam, more than 25,000 were tallied before the Wenatchee fish turned west out of the mainstem. Further upstream at Wells Dam, 22,000 sockeye were counted, presumably heading for the Okanogan.

Last year about 37,000 sockeye returned to the Columbia, about half of 2005's numbers. In 2004, nearly 124,000 sockeye returned to the upper Columbia--the largest run since several big years in the mid-1980s.

By the middle of August, only three ESA-listed sockeye had made the 900-mile trek to the trap at IDFG's Sawtooth Hatchery, near Idaho's Redfish Lake, where managers had expected 50 to 100 to return this season. The stock is maintained by a captive broodstock program that some scientists say should by discontinued. By the end of July, more than 50 socks had been tallied at Lower Granite Dam, near the Idaho-Washington border, but still only about halfway to the lake.

In 2006, three sockeye returned to Redfish Lake. The average return over the past five years has been only 12 fish, but in 2000, more than 200 of them made it all the way home.

Seattle's own sockeye run into the Cedar River also sputtered this year, down to about a 60,000-fish level from last year's monster return of nearly 500,000 sockeye, about twice what managers had expected. This year's run is about half the size they had expected. -B. R.

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